09-2878-cv __________________________________

In the In the In the In the United States Court of AppealsUnited States Court of AppealsUnited States Court of AppealsUnited States Court of Appeals

for the Second Circuitfor the Second Circuitfor the Second Circuitfor the Second Circuit __________________________________

J.D. SALINGER, individually and as trustee of the J.D. Salinger Literary Trust,

Plaintiff-Appellee,

v.

FREDRIK COLTING, writing under the name John David California, WINDUPBIRD PUBLISHING LTD., NICOTEXT A.B. and ABP, INC.,

doing business as SCB Distributors, Inc.,

Defendants-Appellants. __________________________________

On Appeal from the United States District Court for the Southern District of New York

__________________________________

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN, INC. __________________________________

Dan Hunter Deepak Gupta New York Law School Gregory A. Beck 40 Worth Street Public Citizen Litigation Group New York, NY 10013 1600 20th Street NW (212) 431-2813 Washington, DC 20009 (202) 588-1000 August 3, 2009 Counsel for Amicus Curiae

CORPORATE DISCLOSURE STATEMENT

Amicus curiae Public Citizen, Inc. certifies that it has no parent

corporation and that no publicly held corporation owns ten percent or more

of its stock.

Deepak Gupta

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT.................................................. i

TABLE OF CONTENTS...................................................................................... ii

TABLE OF AUTHORITIES .............................................................................. iii

INTRODUCTION AND INTEREST OF AMICUS CURIAE .......................1

ARGUMENT ...........................................................................................................2

I. THE COPYRIGHT ACT FORECLOSES THE DISTRICT COURT’S FINDING OF A COPYRIGHT IN HOLDEN CAULFIELD. ...........................................................2

II. THE DISTRICT COURT’S INFRINGEMENT ANALYSIS IS INCOMPATIBLE WITH COPYRIGHT’S IDEA-EXPRESSION DICHOTOMY..............10

CONCLUSION......................................................................................................20

CERTIFICATE OF COMPLIANCE................................................................22

CERTIFICATE OF SERVICE..........................................................................23

ANTI-VIRUS CERTIFICATION FORM........................................................24

iii

TABLE OF AUTHORITIES

Cases

Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) .....................10

Burroughs v. Metro-Goldwyn-Mayer, Inc., 683 F.2d 610 (2d Cir. 1982)...................................................................................................................7, 8

Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998)................................................................................11

Eldred v. Ashcroft, 537 U.S. 186 (2003).........................................................14, 15

Emerson v. Davies, 3 Story 768, 8 F. Cas. 615 (C.C. Mass. 1845) ...................17

Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) ............................................................................................................15

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ....................................................13

Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985) ...................................................................................................................15

In re Literary Works in Electronic Databases Copyright

Litigation, 509 F.3d 116 (2d Cir. 2007) .............................................................5

Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).......................6

Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997) .............................................................................................................11

Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004).........................5

Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).....................................................................................................................18

Warner Brothers Inc. v. American Broadcasting Companies, Inc., 720 F.2d 231 (2d Cir. 1983)....................................................................... passim

iv

Warner Brothers Pictures v. Columbia Broad. System, 216 F.2d 945 (9th Cir. 1954) ........................................................................................6, 7, 8

Warner Brothers v. American Broadcasting Co., 530 F. Supp. 1187 (S.D.N.Y. 1982)...................................................................................................14

Constitutional and Statutory Provisions

17 U.S.C. § 102 .........................................................................................................3

17 U.S.C. § 102(b)...................................................................................................12

17 U.S.C. § 3 .............................................................................................................3

17 U.S.C. § 411(a).....................................................................................................5

17 U.S.C. §102(b)....................................................................................................13

U.S. Const. Art. I, § 8, cl. 8 ...................................................................................13

U.S. Copyright Office Materials

Compendium II of Copyright Office Practices....................................................4

Supplemental Report of the Register of Copyrights on the General

Revision of U.S. Copyright Law: 1965 Revision Bill, 89 Cong., 1st Sess. (1965) .....................................................................................................4

Books and Articles

Peter Applebome, “Pact Reached on U.S. Edition of ‘Lolita Retelling,” N.Y. Times, June 17, 1999.............................................................18

Jacqueline Chung, Drawing Idea from Expression: Creating a Legal Space for Culturally Appropriated Literary Characters, 49 Wm. & Mary L. Rev. 903 (2007)..................................................................19

Northrop Frye, Anatomy of Criticism (1957) ...................................................16

Jonathan Lethem, The ecstasy of influence: A plagiarism, Harper’s Magazine, Feb. 2007 ..........................................................................................16

v

Louis Menand, Holden at Fifty: ‘The Catcher in the Rye’ and what it spawned, The New Yorker, Oct. 1, 2001 .....................................9, 10, 19, 20

Francis J. Nevins, Copyright + Character = Catastrophe, 39 J. Copyright Soc’y USA 303 (1992)............................................................9, 10, 19

Melville B. Nimmer & David Nimmer, Nimmer on Copyright (1999) .................................................................................................................4, 8

Jed Rubenfeld, The Freedom of Imagination: Copyright’s Constitutionality, 112 Yale L. J. 1 (2002) .......................................................15

Jeannie Suk, Originality, 115 Harv. L. Rev. 1988 (2002) .....................17, 18, 19

INTRODUCTION AND INTEREST OF AMICUS CURIAE

Nobody disputes J.D. Salinger’s claim that he holds a valid copyright in

his novel The Catcher in the Rye or that, as a consequence of that copyright,

he controls the exclusive right to make copies of his book. Salinger, however,

has asserted that Fredrik Colting’s book, 60 Years Later, “infringes [his]

copyright rights in . . . the character Holden Cau[l]field.” Cmplt. ¶ 1. The

district court accepted this contention, concluding that the character of

Holden Caulfield was “quite delineated,” amounting in effect to a “portrait in

words,” and thus subject to copyright protection independent of the work in

which he appears. Tr. at 24.

The district court’s decision expanded Salinger’s copyright far beyond

its legal limit—the fixed, creative expression embodied in The Catcher in the

Rye—and into the realm of concepts and ideas. The court’s infringement

analysis is not only contrary to the Copyright Act, but runs afoul of

established limitations of copyright law, particularly its fundamental idea-

expression distinction. While the fair use defense provides important First

Amendment protections, the vagueness and uncertain application of the

defense can itself chill speech by discouraging authors from creating new

works in borderline cases. Strict adherence, at the outset, to the idea-

2

expression distinction avoids this problem by insulating imaginative and

potentially valuable speech from government-sanctioned suppression.

Public Citizen is a nonprofit advocacy organization that opposes the

misuse of intellectual property law by private interests to squelch public

commentary and debate. Public Citizen has recently litigated cases involving

copyright, trademark, and patent law and the intersection of these doctrines

with the First Amendment and the rights of consumers. Public Citizen is

concerned that the reasoning of the decision below, if upheld by this Court,

would broadly chill the creation of art and commentary at a significant cost to

the public discourse.

ARGUMENT

I. THE COPYRIGHT ACT FORECLOSES THE DISTRICT

COURT’S FINDING OF A COPYRIGHT IN HOLDEN

CAULFIELD.

The district court’s conclusion that Salinger holds a copyright in

Holden Caulfield wholly apart from the fixed expression of the novel itself—a

general right to prevent others from conjuring up readers’ memories of his

iconic character—not only runs afoul of the purposes and constitutional

limits on copyright but is foreclosed by the Copyright Act itself.

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1. Under the 1909 Copyright Act, which was in force until 1979, a

fictional character might arguably have achieved copyright protection as a

“component part” of a work. 17 U.S.C. § 3 (1976) (“The copyright provided by

this title shall protect all the copyrightable component parts of the work

copyrighted, and all matter therein in which copyright is already subsisting,

but without extending the duration or scope of such copyright.”). But in the

1976 Copyright Act, Congress did away with separate copyright protection

for components of works. Accordingly, under current law, copyright

protection extends only to “original works of authorship” that are “fixed” in a

“tangible medium of expression.” 17 U.S.C. § 102 (emphasis added).

Graphically depicted characters, unlike literary characters, might qualify

separately under the Act’s inclusion of “pictorial, graphic, and sculptural

works” in the list of protectable works of authorship. Id. Purely literary

characters, however, like other non-tangible concepts found within a literary

work, are not independently copyrightable.

Congress has consistently rejected proposals to extend copyright

protection to fictional characters, following the recommendation of the

Register of Copyrights:

Proposals have been advanced for identifying fictional characters as copyrightable works in themselves under the bill. . . . As is

4

equally true in the case of detailed presentations of plot setting, or dramatic action, we believe it would be unnecessary and misleading to specify fictional characters as a separate class of copyrightable works.

Supplemental Report of the Register of Copyrights on the General Revision

of U.S. Copyright Law: 1965 Revision Bill, 89 Cong., 1st Sess. (1965) (quoted

in Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.12

(1999)). The district court’s holding that the character of Holden Caulfield is

independently protected by copyright is incompatible with Congress’s

legislative judgment.

The error of the district court’s approach is also underscored by the

longstanding practice of the Copyright Office, which refuses to register

characters. See Compendium II of Copyright Office Practices § 202.02(1)

(“The copyright law does not provide for the copyright registration of

characters as such. However, original works of authorship describing,

depicting, or embodying a character are registrable if otherwise in order.”).

The Office’s practice is to deny registration of characters when the nature of

authorship is described as a “cartoon” or “pictorial” character, but to accept

an application describing the nature of authorship as a “cartoon drawing.” Id.

The Copyright Office’s position on the question of copyright registration is

5

entitled to deference. See Southco, Inc. v. Kanebridge Corp., 390 F.3d 276,

286-87 (3d Cir. 2004) (Alito, J.).

2. Because Salinger did not—and could not—register a copyright in

Holden Caulfield, see Cmplt. ¶¶ 42-43 (alleging only that the book was

registered in 1951 and its copyright renewed in 1979), he may not sue Colting

for infringement of the character. See 17 U.S.C. § 411(a) (“[N]o action for

infringement of the copyright in any United States work shall be instituted

until preregistration or registration of the copyright claim has been made in

accordance with this title.”). This requirement is jurisdictional and the

copyright in the novel cannot be bootstrapped to create jurisdiction, over a

claim of infringement in the character, that would not otherwise exist. See In

re Literary Works in Elect. Databases Copyright Litig., 509 F.3d 116, 121-23

(2d Cir. 2007) (“[T]he existence of a claim based on a registered copyright

does not bring within a district court’s jurisdiction all related claims

stemming from unregistered copyrights.”). For this reason alone, the district

court’s decision must be reversed.

3. Neither the Supreme Court nor this Court has ever accorded

copyright protection to a literary character. And although their holdings are

not always clear, federal courts have long recognized that literary characters

6

are not a separate class of copyrightable works. See Warner Bros. Pictures v.

Columbia Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954). Most discussions of

the question begin with dicta from Judge Learned Hand’s opinion in Nichols

v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), which is often

misread as suggesting independent copyrightability for characters. Judge

Hand’s comments, however, are properly read as an observation about the

appropriate limits of a test for infringement of the literary work Twelfth

Night—not a statement about the independent copyrightabilty of the

characters in a play:

If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress.

Id. at 121.

In 1954, the Ninth Circuit rejected a claim of a copyright in Dashiell

Hammett’s iconic detective, Sam Spade of the Maltese Falcon, reasoning

that “[i]f Congress had intended” the copyright protection of a literary work

to preclude “use of its characters in subsequent works for the life of the

copyright, it would seem Congress would have made specific provision

therefore.” Columbia Broad Sys., 216 F.2d at 950. Such a restriction, the

7

court concluded, would be “unreasonable, and would effect the very opposite

of the statute’s purpose, which is to encourage the production of the arts.”

Id.

In 1982, in an appeal by Edgar Rice Burroughs’ heirs over the movie

version of Tarzan, this Court deliberately left unresolved what it called the

“interesting,” “difficult,” and “venerable” question of “whether and in what

circumstances an author’s creation of a fictional character can be protected

by copyright.” Burroughs v. Metro-Goldwyn-Mayer, Inc., 683 F.2d 610, 621

(2d Cir. 1982) (citing Nichols, 45 F.2d at 121); see also Warner Bros. Inc. v.

Am. Broad. Cos., Inc., 720 F.2d 231, 240 (2d Cir. 1983) (issue was “expressly

left open” in Burroughs).1 As discussed above (at 3-5), the statute itself

answers the question this Court left open in Burroughs and Nichols.

1 The following colloquy—in response to a question from Judge

Newman as to whether any case had held a literary character infringed based on the character’s attributes alone— demonstrates the importance of clearly defining the nature of the copyrighted work:

COUNSEL: That is not the issue. The issue isn’t whether the character has been infringed, your Honor, but whether the literary work has been infringed. JUDGE NEWMAN: I thought your argument was what has been conveyed is a copyright interest in the characters. COUNSEL: No, what has been conveyed is a right under copyright in the literary work, Tarzan of the Apes. . . . .

8

That fictional characters are not copyrightable does not mean that the

Copyright Act permits the wholesale piracy of characters in copyrighted

works—particularly where the expression of those characters is fixed in

graphical form or in film. See Columbia Broad. Sys., 216 F.2d at 950. Properly

conceived, the protection of characters within copyright should be analyzed, as

Learned Hand suggested, as part of the test for infringement of the work as a

whole. See 1-2 Nimmer on Copyright § 2.12 (explaining that the question of

copyright in a character is “more properly framed as relating to the degree of

substantial similarity required to constitute infringement rather than in terms

of copyrightability per se”) (footnotes omitted).

We acknowledge that courts (including this one) have spoken loosely of

characters as if they are independently copyrightable under the 1909 Act and

even under the current Act. See, e.g., Am. Broad. Cos., 720 F.2d at 240. Most

of this discussion, however, either arises out of a misreading of the Nichols

dicta or concerns graphical characters. And “many of these cases have

JUDGE NEWMAN: Wait a minute. What I am trying to get at is what is it a copyright grant in. I thought we were talking about a copyright grant in the characters? COUNSEL: No, we are not. JUDGE NEWMAN: We can put that aside.

Burroughs, 683 F.2d 620 n.10.

9

nothing to do with protecting cartoon ‘characters’ as such but merely hold

that particular directly perceptible images, covered by the plaintiff’s

copyright, were infringed by identical or substantially similar images

marketed by the defendant.” Francis M. Nevins, Copyright + Character =

Catastrophe, 39 J. Copyright Soc’y USA 303, 321-22 (1992).

In any event, extending copyright to characters would prove

unworkable. Characterization is a mental impression formed from a

character’s appearance, thoughts, words, or actions, and is thus inherently

subjective; the same roomful of people could have very different impressions

of Huck Finn or Hamlet. Id. at 304. Indeed, Salinger was initially turned

down by a publishing executive who “couldn’t figure out whether Holden

Caulfield was supposed to be crazy.” Louis Menand, Holden at Fifty: ‘The

Catcher in the Rye’ and what it spawned, The New Yorker, Oct. 1, 2001. And

many people identify the central “moral of the book” as being that “Holden

will outgrow his attitude”—a view that is fundamentally at odds with

Colting’s portrayal. Id.

It is, moreover, “impossible to articulate a criterion for separating

copyrightable from uncopyrightable characterizations that does not compel

courts to operate ultra vires and hand down aesthetic decisions.” Nevins,

10

Copyright + Character, at 343. Given the First Amendment’s prohibition on

content-based speech restrictions, that difficulty is reason enough to refrain

from going down the road pursued by the district court. As Justice Holmes

warned, it is a “dangerous undertaking” for judges in copyright cases to sit

as art critics. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52

(1903).

II. THE DISTRICT COURT’S INFRINGEMENT ANALYSIS IS

INCOMPATIBLE WITH COPYRIGHT’S IDEA-EXPRESSION

DICHOTOMY.

The district court’s infringement analysis was contaminated by its

failure to identify the copyrighted work at issue. Its erroneous conclusion

that characters could be independently copyrighted led it to perform a

simplistic comparison of the similarities between the idea of Holden Caulfield

in the two books, rather than the similarities and differences between the

expression in the works as a whole. The district court asked the wrong

question and it got the wrong answer.

As explained above, the only copyright at issue in this case is Salinger’s

copyright in his fixed work of creative expression, The Catcher in the Rye. As

a consequence of Salinger’s copyright, a publisher ordinarily could not

reproduce literal copies or substantial portions of the novel without

11

Salinger’s permission. Nor could a publisher bypass Salinger’s copyright by

issuing the same book using slightly different language. To prevent such

obvious circumvention, the copyright is infringed if the “total concept and

feel, theme, characters, plot, sequence, pace, and setting” of the works as a

whole are substantially similar and there is no finding of fair use or another

defense. Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132,

140 (2d Cir. 1998). This substantial similarity test has two important aspects:

It “requires that the copying [be] quantitatively and qualitatively sufficient

to support the legal conclusion that infringement has occurred.” Ringgold v.

Black Entm’t Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997) (emphasis

added). While the quantitative component of the infringement test looks only

to the amount of copying, the qualitative component ensures that the alleged

infringement concerns the copying of expression, rather than ideas. Id. at 75.

Salinger’s copyright, properly understood as limited to The Catcher in

the Rye, was not infringed here. There are neither global similarities in

structure and sequence nor localized similarity in language between the two

works. Other than a few common English words and phrases, Colting copied

little or no actual language from novel. Nor did he copy the larger structure

of the work. Although Salinger points to a few scenes that share common

12

settings—the Museum of Natural History, Grand Central Station, and

Central Park, for example—both those scenes and the larger work in which

they are contained are completely transformed.

Instead of properly examining the whole work, the court primarily

relied on the “frequent and extensive use of Caulfield’s character traits,”

noting that Mr. C. had “similar or identical thoughts, memories, and

personality traits to Caulfield.” Mem. & Order of July 1, 2009, at 25. Given

that Colting admitted that Mr. C represents an older version of Holden

Caulfield, some similarities between the two characters are not surprising.

Where there is no actual copying of an author’s character descriptions,

however, “[s]tirring one’s memory of a copyrighted character” is not

sufficient to give rise to infringement. Am. Broad. Cos., 720 F.2d at 242. In

holding otherwise, the district court impermissibly extended copyright

protection not just to the fixed expression set forth in The Catcher in the

Rye, but to the very idea of Holden Caulfield. That result is expressly

forbidden by the Copyright Act. See 17 U.S.C. § 102(b) (“In no case does

copyright protection for an original work of authorship extend to any idea,

procedure, process, system, method of operation, concept, principle, or

13

discovery, regardless of the form in which it is described, explained,

illustrated, or embodied in such work.”).2

This idea-expression dichotomy originates from the Constitution’s

Copyright Clause, which empowers Congress “to promote the Progress of

Science and useful Arts, by securing for limited Times to Authors and

Inventors the exclusive Right to their respective Writings and Discoveries.”

U.S. Const. Art. I, § 8, cl. 8. As codified in 17 U.S.C. §102(b), the dichotomy is

the central balance in the copyright system, granting copyright protection to

the expression of a work, but not to its underlying idea. See Am. Broad. Cos.,

720 F.2d at 240. Providing protection for original works fosters creativity by

“assuring the author of an original work the exclusive benefits of whatever

commercial success his or her work enjoys.” Id. But “if authors are fearful

2 Courts should be careful not to conclude that appropriating a

character from a well-known novel is a copyright infringement because the defendant has “reaped where he has not sown.” Although this might once have been an appropriate reading of copyright’s purpose, recent Supreme Court precedent makes clear that it is no longer is. Fogerty v. Fantasy, Inc., 510 U.S. 517, 526-27 (1994). It is also impermissible to conclude that there has been a copyright infringement based on concerns that consumers could be confused about the identity of the author or that the value of the original might be “diluted.” Consumer confusion and dilution are claims in trademark or unfair competition law, not copyright. Confusion as to attribution, affiliation or source has never been a concern of copyright, nor has copyright ever been troubled by worries about dilution of the “brand strength” of the original work.

14

that their creations will too readily be found to be substantially similar to

preexisting work,” they will be less likely to create new works. Id. Granting

too wide a monopoly to the author would thus reduce the number of works

produced for the benefit of society and frustrate the constitutional purpose of

copyright. The idea-expression dichotomy “enable[s] courts to adjust the

tension between these competing effects of copyright protection.” Id. By

affording protection to character concepts and traits, as opposed to the fixed

expression in which the character is embodied, the district court undermined

this balance.

The district court’s expansive infringement analysis would also

undermine core First Amendment protections. “In addition to spurring the

creation and publication of new expression, copyright law contains built-in

First Amendment accommodations” in the form of the fair use defense and

the idea-expression dichotomy. Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).

To be sure, the fair use defense keeps copyright clear of violating the First

Amendment by immunizing commentary and criticism. But it is an

affirmative defense (thus placing the burden on the defendant), and its

vagueness and unpredictability inevitably chill protected expression. See Jed

Rubenfeld, The Freedom of Imagination: Copyright’s Constitutionality, 112

15

Yale L. J. 1, 17 n.75 (2002). Professor Rubenfeld has forcefully made the case

that fair use alone is not enough to protect exercises in literary imagination

like Colting’s:

No court in the United States should need to wrestle through a set of complicated statutory factors (the factors of the fair use defense) before deciding whether to suppress a book like The Wind Done Gone. We don’t suppress books in this country. Courts have no authority to suppress a book on the ground that its exercise of imagination is harmful and unauthorized. To do so violates the First Amendment—period.

Id. at 54.

Unlike the fair use defense, the idea-expression distinction prevents

copyright from extending to the suppression of literary imagination in the

first place. Its rule is straightforward: “No author may copyright his ideas.”

Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985).

As a result, “every idea, theory, and fact in a copyrighted work becomes

instantly available for public exploitation at the moment of publication.”

Eldred, 537 U.S. at 219. Copyright thus “assures authors the right to their

original expression, but encourages others to build freely upon the ideas and

information conveyed by the work.” Feist Publ’ns, Inc. v. Rural Tel. Serv.

Co., 499 U.S. 340, 349-50 (1991).

16

That ability to “build freely upon the ideas” in others’ work is essential

to First Amendment protection because even the most creative or artistic

activity depends on the ability to borrow from what has gone before. Id.

“Poetry can only be made out of other poems; novels out of other novels.”

Northrop Frye, Anatomy of Criticism 97 (1957). As Frye put it, we have

inherited “a literature which includes Chaucer, much of whose poetry is

translated or paraphrased from others; Shakespeare, whose plays sometimes

follow their sources almost verbatim; and Milton, who asked for nothing

better than to steal as much as possible out of the Bible.” Id. at 96. In a

provocative 2007 essay that has already become a contemporary classic, the

novelist Jonathan Lethem went further, suggesting through an array of

colorful examples plundered from other sources that appropriation and

originality are one and the same. Jonathan Lethem, The ecstasy of influence:

A plagiarism, Harper’s Mag., Feb. 2007, at 59.3

Perhaps surprisingly, this contemporary understanding of art is not

foreign to our tradition of copyright law. As early as 1845, Justice Story,

while riding as a Circuit Justice in a copyright infringement case, observed:

In truth, in literature, in science and in art, there are, and can be, few, if any, things, which, in an abstract sense, are strictly new

3 Available at http://www.harpers.org/archive/2007/02/0081387.

17

and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.

Emerson v. Davies, 3 Story 768, 8 F. Cas. 615, 619 (C.C. Mass. 1845).

Salinger’s complaint against 60 Years Later implicates First

Amendment protection for a new and innovative category of artistic

borrowing that arises out of developments in postmodern and postcolonial

literary theory—a genre known as “literary rewriting.” The works in this

genre include novels, poems, plays, and films that “self-consciously repeat

and refashion material from our common literary heritage. These works

draw, to various degrees, on preexisting plots, characters, scenes, and text.”

Jeannie Suk, Originality, 115 Harv. L. Rev. 1988, 1989 (2002). Noted

examples includes Jean Rhys’s Wide Saragasso Sea, an acclaimed novel that

rewrites Jane Eyre from the perspective of Bertha, the mad woman in the

attic; Tom Stoppard’s Rosencrantz and Guildenstern are Dead, a comedic

and philosophical play that appropriates two characters from Shakespeare’s

Hamlet; and Lo’s Diary, a feminist rewriting of Vladimir Nabokov’s Lolita

from the nymphet’s point of view.4

4 Because Lolita remains in copyright, the latter book resulted in an

infringement suit by the author’s son, Dmitri. Probably in light of the unpredictability of fair use, the case was settled on the condition that the

18

The example mentioned in Professor Rubenfeld’s article, Alice

Randall’s The Wind Done Gone, presents a slave’s view of the fictional world

of Margaret Mitchell’s Gone with the Wind. The book is celebrated not only

for its subversive critique of the antebellum South, but also for its

significance in copyright law. A federal district court initially enjoined its

publication, and the Eleventh Circuit reversed the injunction by awkwardly

cramming Randall’s work into the category of “parody,” Suntrust Bank v.

Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001)—even though the book

wasn’t parodic and the target of its criticism was less Mitchell’s work than

the nature of American slavery, literary voice, and cultural construction. See

Suk, 115 Harv. L. Rev. at 1995-2002.

As already noted, the law of this circuit holds that merely “[s]tirring

one’s memory” of a character in a copyrighted work is not infringement. Am.

Broad. Cos., 720 F.2d at 242. The district court’s error was to confuse

Colting’s act of literary rewriting—which involves conjuring the memory of

Holden in the reader’s memory to achieve a literary effect—with the lifting

of actual expression, as in the case of plagiarism or piracy. Under copyright’s

publisher include a critical preface written by Dmitri. See Peter Applebome, Pact Reached on U.S. Edition of ‘Lolita’ Retelling, N.Y. Times, June 17, 1999, at E1.

19

idea-expression distinction, only the expression receives protection, not the

shared cultural memory. See Jacqueline Chung, Drawing Idea from

Expression: Creating a Legal Space for Culturally Appropriated Literary

Characters, 49 Wm. & Mary L. Rev. 903, 924, 939 (2007) (arguing that

copyright law should create a legal space for derivative works that

appropriate culturally iconic literary characters); Nevins, Copyright +

Character, 39 J. Copyright Soc’y USA at 304.

Permitting literary rewritings like Colting’s, moreover, does no

damage to the goals of copyright law because the rewritings “almost

invariably rewrite canonical works, which, by virtue of their canonicity, have

almost certainly yielded rewards far greater than necessary to motivate their

creation.” Suk, Originality, 115 Harv. L. Rev. at 1997-98. As Salinger’s

complaint acknowledges, “Catcher in the Rye has taken on a specific place in

American culture and is the benchmark against which any coming-of-age

story is measured.” Cmplt. ¶ 34. Indeed, the critic Louis Menand has

specifically identified “‘Catcher in the Rye’ rewrites” as a “literary genre all

its own.” Menand, Holden at Fifty.

If, as the complaint alleges, Salinger’s is a “crucial American novel,”

Cmplt. ¶ 2, then it is crucial too that the law not stand as a barrier to artistic

20

dialogue with the shared memory of that novel. And in Salinger’s case, there

is special reason to allow commentary because his life and work raise

questions of “authorial control” and whether there is any “distinction

between Salinger and his characters,” Menand, Holden at Fifty—precisely

the issues explored by Colting. As Mendand observes, the “end product of

the ideal Salinger rewrite isn’t a Salinger story. It’s Salinger.” Id.

On the other side of the scale, broad protection for literary characters

independent of the works in which they appear provides no countervailing

benefit that would justify a serious imposition on First Amendment rights. It

is implausible that any author would forego writing a work of literature out

of fear that, if the work were to become influential, it might become a point of

departure for other books. Salinger’s incentive to publish The Catcher in the

Rye in 1951 would not have been diminished in any way had he known that 60

Years Later would one day be written. Indeed, Salinger has been amply

rewarded for publishing his novel, which has sold more than thirty-five

million copies since it was published in 1951. Cmplt. ¶ 33.

CONCLUSION

The Court should reverse the preliminary injunction.

21

Respectfully submitted, _____________________

Deepak Gupta Gregory A. Beck Public Citizen Litigation Group 1600 20th Street NW Washington, DC 20009 (202) 588-1000

Dan Hunter New York Law School 40 Worth Street

New York, NY 10013 (212) 431-2813

August 3, 2009 Counsel for Amicus Curiae

22

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B). The brief is composed in a fourteen-point

proportional typeface, Century Expanded. As calculated by my word

processing software (Microsoft Word 2003), the brief contains 4,270 words,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

Deepak Gupta

23

CERTIFICATE OF SERVICE

I certify that on August 3, 2009, I caused the original and ten copies of

this brief to be sent by first-class mail to the Clerk of the Court. I also served

by email and caused two copies to be sent by first-class mail to the following:

Edward H. Rosenthal 488 Madison Avenue, 9th Floor New York, NY 10022 (212) 980-0120 Counsel for Defendants-Appellants

Marcia Beth Paul, Esq. Davis Wright Tremaine LLP 1633 Broadway, 27th Floor New York, NY 10019 (212) 489-8230 Marciapaul@dwt.com Counsel for Plaintiff-Appellee

Deepak Gupta

24

ANTI-VIRUS CERTIFICATION FORM

See Second Circuit Local Rule 32(a)(1)(E) CASE NAME: Salinger v. Colting, et al. DOCKET NUMBER: 09-2878-cv I, Deepak Gupta, certify that I have scanned for viruses the PDF version of the ________ Appellants Brief ________ Appellees Brief ________ Reply Brief X Amicus Brief that was submitted in this case as an email attachment to <briefs@ca2.uscourts.gov> and that no viruses were detected. Please print the name and the version of the anti-virus detector that you used Symantec Antivrius program version 10.0.1.1001 If you know, please print the version of revision and/or the anti-virus signature files Virus Definition File version 5/14/2008 rev. 35

_________________________ Deepak Gupta

August 3, 2009